Charles Fried tells part of the story about Elena Kagan’s appearance at a Federalist Society dinner at Harvard a few years ago:
In February 2005 the student branch of the Federalist Society (a group founded in the early ’80s to explore and promote conservative and libertarian perspectives on the law) held its national jamboree at Harvard Law School. At the banquet in a downtown hotel, Kagan rose to speak the host institutions’ words of greeting to the thousand or so federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former Clinton White House official responded: “You are not my people.” This brought the dark-suited crowd of federalist students to their feet in a roar of affectionate approval.
Fried leaves out enough of the story that it becomes incomprehensible. Why would the Federalists cheer someone seemingly insulting them by saying, “”You are not my people”? What Fried forgot (or chose to omit) were Kagan’s two lines immediately before her disclaimer.
On the night of Fried’s story, in a very large banquet room I was sitting next to Frank Easterbrook, perhaps 15 or 20 feet from Elena Kagan. She began her welcome by booming out:
“I LOVE the Federalist Society!”
Kagan paused for emphasis and then repeated,
“I LOVE the Federalist Society!”
As I recall, after applause Kagan’s next line was:
“But, you know, you are not my people.”
The crowd indeed loved it. But without Kagan’s opening lines, Fried’s affectionate account in the New Republic makes little sense.
Kagan then went on to explain why she loved the Federalist Society — chiefly, its contributions to the intellectual lives of American law schools and its commitment to open debate. She talked about what liberals had learned from the Federalist Society and about the liberal American Constitution Society trying to copy its methods and success.
Years ago, I asked an administrator at the Federalist Society whether Kagan’s speech had been recorded and he said that he didn’t think so.
UPDATE: In a 2009 interview, Elena Kagan makes her praise for the Federalist Society sound almost like an afterthought, rather than her opening statement:
MSNBC, partially quoting an NPR interview: While at Harvard, received a standing ovation from the conservative Federalist Society. “I sort of looked out at them, and I said, ‘You are not my people, and everyone laughed. And then I said, ‘But I love the Federalist Society, and I think that that’s when I got a standing ovation.” (NPR interview, 12/22/09)
I remember at the time being struck by the boldness and seemingly genuine praise of her exclamation, “I LOVE the Federalist Society!” Yet I was wondering if it was just pandering until she uttered the line about the Federalists not being her people — a qualification necessary for her praise to be credible to me.
Too bad there’s probably no tape. Memories are notoriously imperfect.
[UPDATE: I checked my recollection with a Federalist officer and law professor present on the occasion and he remembered it exactly as I remember it: Kagan opened with "I LOVE the Federalist Society! "I LOVE the Federalist Society!" She followed with a statement that "you are not my people."]